Frequently Asked Questions
1. What is collaborative practice?
Collaborative practice is a voluntary dispute resolution process in which parties settle their family law dispute without resorting to litigation. In collaborative practice, the parties sign a collaborative participation agreement describing the nature and scope of the matter; the parties voluntarily disclose all relevant and material information; and the parties agree to use good faith efforts in their negotiations to reach a mutually acceptable settlement. Each party must be represented by an attorney, whose representation terminates if either party pursues litigation. The parties also engage a team of neutral experts, including a financial specialist, a mental health specialist, and a child specialist to assist them in negotiating a settlement, whose representation also terminates if either party pursues litigation.
2. What is the collaborative team?
Each party is represented by an attorney trained in collaborative practice. In addition, there are neutral financial, mental health, and child specialists, who are also trained in collaborative practice. The financial specialist helps the family understand their assets and liabilities, value businesses and other assets, calculate spousal and child support, and assist in financial planning; the mental health specialist is a facilitator of team meetings and addresses the emotions which arise during the dissolution of a marriage and other family law matters; and the child specialist helps in the creation of a parenting plan for children and their parents.
3. Why is collaborative practice such an effective settlement process?
Collaborative attorneys and the neutral team of specialists have a different state of mind about their roles in collaborative family law dispute resolution. Instead of being dedicated to getting the largest possible “piece of the pie” for their own clients or achieving the most one-sided victory in the courts —no matter the human or economic cost — collaborative practice is dedicated to helping clients achieve long-range solutions for their post-dispute restructured families.
Unlike trial lawyers and forensic experts, collaborative professionals do not take advantage of mistakes inadvertently made by the other party or the other attorney. Likewise, they do not threaten, insult, or dwell needlessly on negative past events. They expect and encourage the highest good faith problem solving behavior from their own clients and from themselves.
Collaborative attorneys trust one another. While they still owe a primary allegiance and duty to their own clients within all mandates of professional responsibility, they recognize a settlement impacts the short- and long-term welfare of the entire family. Resolution is not about winning and losing: it is about arriving at workable solutions for parties and their children as they transition to living apart. Collaborative practice allows the parties and attorneys to work with neutral specialists to uncover and implement smooth, sensible, even-handed, and balanced decisions.
Collaborative practice offers a greater potential for creative problem solving than mediation, conventional negotiation, or litigation. It enables two trained attorneys to work with couples face-to-face and focus on the real issues in the family’s future. Trial attorneys may excel at advocacy in the court system, but they are dedicated to very different results based on the positions of their clients. No matter how capable lawyers may be, they simply cannot succeed as collaborative attorneys unless they constantly explore satisfactory mutual resolutions to the problems facing both parties. This family-centered approach is unique to collaborative practice. A dedication to settlement — arriving at long-lasting and comprehensive agreements — is the foundation for the neutral specialists in the process, too.
4. What issues may be resolved through collaborative practice?
Parties may utilize collaborative practice in most family law cases, including divorce, child custody, visitation, child support, alimony, and equitable apportionment cases, as well as modification cases.
5. Are all cases suited for collaborative practice?
There are some types of cases for which there is no effective approach. If one or both parties have significant mental disabilities, severe personality disorders, or are prone to violence, they are not ideal candidates for the collaborative practice. On the other hand, these types of cases are not served any better, and may be made worse by trying to use more traditional litigation or the mediation process. If one party is operating at a disadvantage, the mediation model may result in an unfair result. On the other hand, the same can be true of the litigation model, which can end up being extremely expensive and time-consuming. Therefore, while some types of cases are not ideal for collaborative practice, collaborative practice may still be the best alternative because additional help is available which allows the parties to find a more effective solution. Care in structuring such a case and getting the professional help needed is key.
6. How does collaborative practice differ from traditional litigation?
The primary difference between collaborative practice and traditional litigation is that the parties sign a participation agreement in collaborative practice in which they commit not to litigate their case. There is full disclosure of all financial and other relevant information in a transparent and cooperative process. While the parties are represented by their individual attorneys, a team of neutral specialists is formed who help move the process forward. Collaborative practice is an alternative dispute resolution method that is respectful of the desire to maintain relationships after the conflict and is predicated on the pledge not to litigate, the mandatory withdrawal of the attorneys and other team specialists if the case does not settle, and a commitment to deal with the other party honestly and with respect, while working towards shared goals in reaching an agreement.
7. Is collaborative practice faster than litigation?
It can be. In collaborative practice, the parties control the pace. The team, not a crowded court schedule, determines when each meeting will take place. Because the process is based upon full disclosure and cooperation, the process of gathering information is generally more expedient. If, however, a more deliberate pace is desired or required, the team can accommodate.
8. Is collaborative practice more expensive than litigation?
Litigation is without question the most expensive way to resolve family law disputes. Motions, depositions, subpoenas, discovery, court appearances, guardians, and experts are all commonplace and costly aspects of divorce through the court system, and after depleting substantial marital resources on these adversarial tactics, the overwhelming majority of litigated cases result in settlement. Collaborative practice allows couples to manage their settlement budgets, while working with collaborative attorneys and neutral specialists, who are committed to cost-effective measures for the family. Collaborative practice enables parties to achieve their goals at combined costs far below the expenses associated with a prolonged, adversarial, and unpredictable law suit in the court system. Because of the cooperative nature of collaborative practice, much of the “homework” that is required is accomplished by the parties themselves. This delegation of responsibilities yields a very real savings to the parties as they work toward a “global” settlement. In litigation, the retention of dueling experts may be compelled by a judge or necessitated by what the other party does.
9. How does collaborative practice differ from mediation?
In mediation, the parties choose a neutral mediator to help them resolve the issues they face. The mediator, however, cannot give either party legal advice and is prohibited from assisting either side in advocating his or her position. If one party becomes unreasonable; lacks negotiating skill; or is emotionally distraught, mediation can become unbalanced. Likewise, should one party have greater knowledge about the finances of the household, an unfair advantage may arise. Sometimes, the superior communication skills of one party leads to a larger focus on that person’s concerns. If mediation reaches impasse, litigation usually follows.
Collaborative practice is designed to provide balance; to assure legal representation at every step; and to afford outside expertise when warranted. Each side has an advocate dedicated to settlement. Even if one party lacks negotiating experience or financial understanding, the trained collaborative attorneys and neutral specialists help everyone reach a consensus. It is the job of the attorneys to work with their own client and with each other to make sure information is shared fully and the process remains positive and productive.
10. How does collaborative practice differ from “traditional” family law negotiations between attorneys?
In collaborative practice, all parties engage in an open, honest exchange of information; neither party takes advantage of the miscalculations or mistakes of the other, but instead identifies and corrects them; both parties insulate their children from disputes, yet always have their needs and interests as utmost priorities; the parties use joint neutral specialists, instead of competing adversarial experts; a respectful, creative effort to meet the legitimate needs of both parties replaces tactical bargaining backed by threats of litigation; the attorneys must guide the process to settlement or withdraw from further participation, unlike adversarial attorneys, who remain involved whether the case settles or is litigated; and there is parity of payment to each attorney so neither party’s representation is disadvantaged by lack of funds. Posturing, exaggeration, and secrecy often predominate when lawyers negotiate while having litigation as an option. Traditional family law cases are resolved regularly “on the courthouse steps.” By that time, enormous funds have been spent and extensive emotional damage may have been inflicted upon everyone involved. Those settlements are often reached under conditions of considerable tension and mounting pressure to avoid the fate of a judge. Moreover, conventional settlements are shaped largely by what the attorneys believe a court is likely to do, not by what is in the best interest of the family.
11. How does collaborative practice minimize hostility?
Collaborative practice is based upon full-disclosure and transparency in a safe and private environment. The goal of collaborative practice is to reduce conflict during the process and into the future. There is a commitment to respect each other’s shared goals and to follow a code of conduct. Anger, loss, and grief are a natural part of family conflicts. Collaborative practice allows parties to receive support and guidance to manage these emotions, which can otherwise exacerbate the conflict and derail settlement attempts in litigation.
12. Are both parties required to disclose their financial information?
Yes. Each party must provide full disclosure of all financial information. The attorneys and neutral financial specialist assist the parties in this process. Both parties sign a binding agreement that they will be open and honest in providing this material. The participation agreement requires the team to withdraw if the parties are not fully compliant with this.
13. Are each party’s rights be protected in collaborative practice as well as in traditional litigation?
Yes. Parties are as fully represented in collaborative practice as in litigation. The attorneys remain the advocates of their clients, and they advance their client’s interests in negotiations but with a commitment to work towards mutually agreeable solutions.
14. What if the other party does not have an attorney?
Talk with the other party about the benefits of collaborative practice and provide the other party with resources to learn more about collaborative practice, like this website and the website of the International Academy of Collaborative Professionals. The names of professionals trained in collaborative practice can be found in this website. It is important for those involved in the process to be trained in collaborative practice. This allows for the trust associated with knowing the others on the team are also committed to the process.
15. May we switch to collaborative if we have already started litigation?
Yes, but it may require changing to attorneys who are trained in collaborative practice.
16. Will collaborative practice work for me?
Family law disputes are often sensitive and personal. No single approach is right for everyone. Many parties find collaborative practice a welcome alternative to the often destructive, and sometimes very expensive, aspects of litigation. If the following values are important to you, collaborative practice may be a good option:
I want us to communicate with a tone of respect.
I want to prioritize the needs of our children.
My needs and the needs of the other party require equal consideration, and I will listen objectively.
I believe that working creatively and cooperatively resolves issues.
It is important to reach beyond today’s frustration and pain to plan for the future.
I can behave ethically toward the other party.
I choose to maintain control of our family dispute with the other party rather than relegate it to the court system.